I think the current debates about free speech are a good thing, because for far too long there has been much less debate about free speech than a free speech regime urges us to have about everything else.

That’s Frederick Schauer, professor of law at the University of Virginia, in a recent interview with Richard Marshall at 3:16 AM. Near the beginning of the interview, the two discuss John Stuart Mill’s arguments about freedom of speech and thought in On Liberty.

[Kay Rosen, “Better Days”]

The most common reading of On Liberty takes Chapter 2 as an instantiation of Chapter 1. That is, in Chapter 1, Mill, famously, argues that it is illegitimate for the state to restrict personal conduct except to prevent harm to others. Preventing harmless immoralities, or preventing harmful conduct harming only the actor, are, Mill argues, beyond the state’s proper powers. And so when in Chapter 2 Mill argues for the “liberty of thought and discussion,” it seems straightforward to take thinking and discussing as coming within the Chapter 1 argument and thus as harmless. And this reading is reinforced by the childhood adage “Sticks and stones may break my bones, but names will never hurt me,” by the common civil libertarian acceptance of the harmlessness of speech, and by the frequency with which arguments from harmlessness are conjoined with distinct arguments from free speech, as is especially common (and often justified) in the case of arguments against restricting certain forms of sexually explicit speech whose only regulable attribute is its challenge to a certain form of moral sensibility about sexuality.

Professor Schauer thinks there’s a better interpretation available:

In contrast to the conventional reading I have just described, I think a better reading (whether it was Mill’s intended reading I will leave to others to decide) is that Chapter 2 is an argument not for protecting thought and discussion because they are harmless, but despite the harm they may cause. Thus, when Mill argues for the epistemic advantages of a regime of liberty of thought and discussion, I read him—or reread him—as saying that protecting even harmful thought and discussion is necessary to secure the epistemic advantages of a free speech regime, or to secure the advantages of intellectual character that come from requiring people to confront what they think false, and thus to understand why what they think false is actually false. And thus the conventional reading, which takes freedom of speech to be protected because of speech’s harmlessness, cannot explain (or justify) the protection of harmful speech, and thus offers a defense only of a weak and very limited free speech principle. My preferred reading explains and justifies a more robust free speech principle, although the question then remains whether such a robust principle is a good thing.

I think the current debates about free speech are a good thing, because for far too long there has been much less debate about free speech than a free speech regime urges us to have about everything else…

With respect to pornography, many of these debates have been frustrating because of confusions about labels. Traditionally, those who would restrict sexually explicit depictions have objected to the sexual explicitness, and have defined “pornography,” and the legal term “obscenity,” in terms of sexual explicitness. But although most sexually explicit literature until recently was distressingly celebratory of sexual violence and sexual coercion, there is nothing about sexual explicitness itself that needs to include such themes. Conversely, there is nothing about the verbal or pictorial endorsement of sexual violence, coercion, and exploitation that requires explicitness. So if we take Mill as arguing only for the protection of harmless speech, he turns out to have little to say about the regulation of speech that encourages or endorses or tolerates sexual violence, at least if we accept—and this is an empirical social science question and not a purely conceptual one—that widespread endorsements of sexual violence have a probabilistically causal relationship to the societal level of sexual violence. But if we take Chapter 2 as arguing for the desirability of protecting false views—the view that women who say “no” mean “yes,” to take one of the most notorious examples—then Mill provides support for the existing American legal and constitutional view, although, again, it is hardly clear that that that view should be accepted.

Much the same applies to many of the parallel debates on university campuses, many of which are focused on various forms of so-called hate speech, including race-based insults, vilification, and denigration. Again, there are important debates to be had about whether such speech ought to be protected in general, or ought to be especially protected (or especially unprotected) in university environments. But such debates will remain shallow as long as proponents of restriction insist that everything that is harmful ought to be restricted while opponents insist with equal vigor that the speech is harmless. Only by accepting that some of such speech is genuinely harmful can we have a fruitful discussion of when (if ever) and why harmful speech ought to be restricted, and when (if ever) and why harmful speech ought to be protected or tolerated.

You can read the whole interview here.